I came across a terrific article recently about a case involving a small business owner’s sale of books online.  The full article can be read here.  The online merchant would buy books literally by the pound from publishers looking to liquidate their old inventory.  The merchant would then photograph the covers, post the images online with a brief synopsis, and then sell the books for a profit.  One such book, with a rather interesting history, featured a young girl on the cover.  The girl sued the merchant’s Internet service provider (ISP) in her home state of Florida for violation of her right of publicity, civil theft, and invasion of privacy.  The ISP claimed immunity under the Federal Communications Decency Act (CDA) which protects ISPs from state law claims.  I’ve discussed the CDA previously here.  The 11th Circuit, reviewing the case on appeal, did not take up the CDA defense and instead found for the ISP on much more sensible grounds.  From the article:

“What was the difference,” the court asked, “between this person who sells books on the Internet and Barnes & Noble? Only that one is bricks and mortar and the other is cyber.  In both cases customers walk up and down the isles viewing the offered books and evaluating them for purchase.  We see little difference if a customer views the cover on-line or walks down the aisle at the store; the same purpose is served.”  ….  It followed, then, that the use by my friend [the merchant] of the photo of the book’s cover was not an endorsement or promotion by the plaintiff of any product sold by my friend including this book.  The display of the photograph of the plaintiff on the book’s cover was merely incidental, and customary, to the sale of books on the Internet.

Although victorious in the end, the author informs us that his friend, the merchant, is nevertheless going to avoid posting any photographs of people on the Internet in any way connected to the sale of a product.

–Matt

Section 230 of the Communications Decency Act of 1996 (the CDA) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others. However, the Ninth Circuit Court of Appeals ruled in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC that the Roommates.com roommate matching service was not entitled to immunity under Section 230 for claims brought under the federal Fair Housing Act. The court concluded that because of the manner in which the service elicited information from users concerning their roommate preferences, and the manner in which it utilized that information in generating roommate matches, the matching service itself created or developed that information within the meaning of Section 230, and thus was responsible for it as an “information content provider.”

If you are the operator of an “interactive computer service” you should periodically review how your service elicits, collects, and utilizes user information in order to avoid being labeled the “information content provider” of such information and lose your CDA immunity.

–Matt